Last month, I was at the International Legal Ethics Conference in
Banff (ILEC V). During my third presentation/panel of the conference - the
third of which was not actually concentrated on legal ethics - it
occurred to me that calling the conference the “International Legal ETHICS
Conference,” and calling the attending scholars and legal professionals “legal
ethicists” was, on the one hand, completely accurate and a good thing (“the
good”), but on the other hand, was perhaps an undersell and maybe a bad thing
(‘the bad”).

The Good
Calling
this area of study “legal ethics,” is and has been a good thing. Likely,
it was the right set of words originally. “Legal ethics”
immediately resonates with insiders and outsiders, lawyers and nonlawyers
-- especially in today’s market of lawyers gone bad. Moreover, it
immediately communicates. If you tell someone you study the legal
profession, you get a quizzical look. If you say you study “legal
ethics,” you get a head-nod.

Further,
calling what we do “legal ethics” can be credited with uniting a group of
academics and legal professionals from around the world that consider
themselves experts and thought leaders in legal ethics. These professors
and professionals commonly teach a course on professional responsibility and
write about the ethics of different types of practice and professionalism.

The ILEC
V is proof of the power of a common agenda to cross cultural and geographical
distances. The ILEC V is proof of the power of a common agenda to affect
change and unite change-agents. In addition to teaching and writing about
legal ethics, the group that gathered at the ILEC V in Banff is known for
challenging the status quo and innovating the way we think about, approach, and
teach legal ethics.

However,
it was clear as I participated in panel after panel, that this group of legal
ethicists aren’t only ethicists. The teaching and scholarly agenda of
most of the academics and legal professionals attending the conference is much
broader than the words “legal ethics” encapsulate. In keeping with that,
many of the panels concentrated on topics outside or in addition to legal
ethics like regulation, empirical study, innovation in education, and so on.

The ILEC
V was proof that lots of good - more than good - is coming in the name of legal
ethics.

So how
can that be bad?

The Bad
Calling
what we do “legal ethics,” however, isn’t perhaps all good.

Although
the words “legal ethics” immediately conjure up something understandable in the
minds of others, they paint an incomplete picture. Many (if not most)
legal ethics scholars would be more aptly described as analyzing and writing
about the legal profession which includes the study of legal ethics but also
the study of minority, diversity, and gender issues, the role of general
counsels, prosecutors, and, professional services, the changing landscape of
regulation, law firm practice, and corporate structure, and all areas of legal
education.

Somehow,
it seems that the analysis of the Model Rules of Professional Conduct have
become a proxy for the field of legal ethics. But this may not be the
most principled way to think about the field of legal ethics. An article
analyzing the pros and cons of outsiders investing in law firms and the impact
and roadblocks created by Model Rule 5. 4, although it touches on ethical
issues, is not really an article about legal ethics. An article analyzing
legal innovation outside of the U.S. and critiquing the Model Rules of
Professional conduct that impede such innovation within the U.S. is not really
an article about legal ethics. Not to mention that labeling these works
as such, may water down the importance of scholarship that really is focused on
legal ethics.

So why do
we continue to call these other things“legal ethics”?

The Ugly
Perhaps
we call these other things legal ethics because we think deep down that it
legitimates our “other” scholarship in the eyes of our academic peers.
When our work is labeled “legal ethics” scholarship, it is easily
accepted if not revered by other scholars and outsiders. But when what we
do is labeled as “the study of the legal profession” or “legal profession
scholarship,” when what we present or write about has a real and practical
component to it (even though it has a normative component) it can be critiqued
for being too descriptive. It can be criticized because its
recommendations for how the world should be rely on how the world is,
that is, the normative argument is contingent on how things really could
be.

Or
perhaps we call it “legal ethics” because (at least for untenured academics) it
buys us credibility for the other things we choose to spend our time doing like
co-chairing and being the keynote speaker at the Corporate Counsel Summit
(something that some faculty believe should not be counted as an academic
activity in a tenure review) OR creating a new part-virtual global
collaboratory designed to innovate the way we practice and teach law (which
some faculty believe is not worthy of law school credit).

True,
there is a lot of good in analyzing, teaching, and writing about “legal ethics”
and we should not stop doing so.

True, the
world is coming around. The world is beginning to see the value in
research and scholarship that dissects what is happening in the global legal
marketplace - in practice and in education.

And true,
it is easier, in the meantime, until that world view changes, to use the
lore of “legal ethics” to buy the freedom to do our other work -- our
qualitative interviews of lawyers, our empirical studies on legal education,
our experiments in legal innovation. In the meantime, it is a lot
easier to call it “legal ethics” than to figure out exactly what to call it and
risk calling it something that isn’t seen as academic enough or that impedes
our ability to have a practical and important impact on our profession.

But as the Givers latest song lyrics make clear, the “ugly”
truth is that there is no such thing as a “meantime” -- and this is
especially true in today’s law market. Tomorrow, one of our law schools
might close. Tomorrow, one of our law firms might be bought.
Tomorrow, one of our law students (or all of them) might not get hired.
Tomorrow, a nonlaywer might be practicing law without reproach.

The ugly
truth is that if, in the meantime, we continue to label all that we do
as “legal ethics,” we may get stuck in the meantime and never get around
to calling what we do what it is. And in so doing, we may get stuck in
the meantime and never turn what we do, turn us, into what it and we can
become . . . .

Our
collective agenda is something that includes the study of legal ethics but is
more than that . . . it is the study of the legal profession, the law market,
what it was, what it is, and what it should be. And more than that it is
a passionate dedication to understanding how the law market works and
how law is taught in order to affect change -- not just in how we think about
these various stratums but in what we as lawyers and educators “do” and
how we do it.

The time
is now to call what we do what it is and call it out loud. The
time is now to challenge those that think that the study of “legal
ethics” or constitutional law or legal theory is more important, more
normative, or more academic than studying what the law market is, predicting
what it might be, and arguing for what it should become.

SUFFOLK UNIVERSITY LAW SCHOOL invites applications for an appointment as Professor in the Practice of Law to instruct in and direct its Transactional Skills Program starting in the 2013-14 academic year. We seek a candidate who has the interpersonal skills, vision and ambition necessary to establish an innovative transactional lawyering skills program, and who will function as the program’s architect, principal faculty resource, and, as necessary, supervisor in mentoring adjunct faculty members. We welcome applications from persons with a demonstrated background in transactional practice or pedagogy and a commitment to teaching, and particularly encourage applications from women, persons of color, sexual orientation minorities, and others whose backgrounds will contribute to the diversity of the faculty. The faculty position will either be tenure-track or be covered by a long-term renewable contract. Interested candidates should contact Professors Jeffrey Lipshaw or Joseph Franco, Co-Chairs, Business Law and Transactional Skills Committee, at jlipshaw@suffolk.edu or jfranco@suffolk.edu, with a copy to jlafauci@suffolk.edu, or mail their materials to the Co-Chairs of the Business Law and Transactional Skills Committee, c/o Ms. Janine LaFauci, at Suffolk University Law School, 120 Tremont St., Boston, Massachusetts 02108-4977. Suffolk University is an equal opportunity employer.

But Marcia was being thoughtful, and judging by some of the comments, no good deed goes unpunished. Here's some support for her view, and if it's unduly reasonable, I'll just have to take my punishment too.

One of the false dichotomies I've observed over the course of a long career in and out of academia (more out than in - twenty-six years of law firm and in-house, managing, hiring, firing, etc.) is the view that the world divides up neatly into gods and demons. Marcia's post highlights and critiques the perfect storm of deification and demonization when in the face of increasingly scarce resources (see Jerry's post), (a) there's a good old-fashioned turf war, (b) in law school, (c) at a time when all of the contending protagonists and antagonists feel the warm glow of victimization and justification.

Why turf war? Marcia refers to warring dualistic tropes, and my take is that each one is tied to a particular fight over turf. To paraphrase James Carville, it's the scarce resources, [pejorative]! Education may not be "business," but it is an institution governed by pretty basic economics, and cash does fuel the engine. Everybody (including me) has a stake, and when the scarce resources are getter scarcer (corporate legal budgets, good lawyer jobs, raises, summer stipends, full-time tenure track jobs, etc.), it's awfully hard to separate out one's adaptive and atavistic instincts for survival from one's dispassionate assessments. Campaign rhetoric isn't meant to be subtle; it's meant to rally the troops. And objectivity is a nice ideal, but don't tell that to somebody in a metaphoric foxhole just trying to survive the battle. (I'm putting aside real foxholes and their physical equivalents, though even that dichotomy may get blurred.)

The initial posting I made on August 9 was based on a “composite” database consisting of information gleaned over several months from different sources – initially from law school webpages, supplemented with information from U.S.News (when LSAT or GPA datapoints were not available on webpages) supplemented more recently with information from the ABA-LSAC Guide 2013 to fill in any remaining gaps (enrollment data and some medians). At the time of posting, I had not gone back through all the data for all the schools to cross-check against the data in the ABA-LSAC Guide 2013 and eliminate any data discrepancies (although I thought I had done so for the schools listed in the chart).

A number of people have asked for the complete spreadsheet. I have now gone back and compiled the complete spreadsheet using data solely from the ABA-LSAC Guides for 2012 and 2013. I have provided the complete spreadsheet, organized alphabetically, to the folks at Law School Transparency where it is now or will shortly be available for viewing.

The macro points remain fairly consistent with a couple of small changes. Working with the 194 schools in the contiguous 48 states and Hawai’i originally included in the U.S. News and World Report database (excluding the three Puerto Rico schools), the new database using only data from the ABA-LSAC Guides for 2012 and 2013 shows the following:

PROFILES IN DECLINE -- Between 2010 and 2011, 114 law schools had a decline in their LSAT/GPA profile, 55 had an increase in profile, and 25 had a mixed profile.

ENROLLMENT IN DECLINE – Between 2010 and 2011, 142 law schools had a decline in enrollment (of which 65 had a decline of 10% or more), 29 had an increase in enrollment (of which 8 had an increase of 10% or more), and 23 had flat enrollment (within +/- 1% of 2010 enrollment). This means over 70% of schools had a decline in enrollment and that one-third had a decline in enrollment of 10% or more. The decline in enrollment totaled roughly 4100 students or roughly 8 percent.

(This updated chart reflects one subtraction and two additions from what was originally posted. Charleston was incorrectly included in the initial chart (resulting in 38 schools being listed) and now has been removed. Its enrollment was down only 5.4%. (In the composite dataset with which I had been working its 2011 enrollment and profile was initially based only on full-time students, overstating the percentage decline). Baylor and Willamette were not included in the initial chart, but are included here. Baylor’s total first-year enrollment is hard to estimate off its webpage because of three admissions cycles, fall, spring and summer and uncertainty about which three “count” for a given year. Willamette had a slight change in enrollment from 146 (listed on its webpage) to 141 in the ABA-LSAC Guide. This change shifted it from a decline of less than 10% to a decline of slightly more than 10%. I have apologized to Dean Abrams at Charleston for my error in including Charleston in the initial chart.)

Goldstein's comments on the evolution of SCOTUSblog throw into sharp relief how the online world is gradually creating new institutions that chafe against established conventions of what is professionally or academically serious. I am not kidding -- 50,000 visitors to the site a day, including hundreds or even thousands from inside the Supreme Court itself. In comparison, Harvard Law Review has an annual subscriber base of 2,000 total. (Goldstein mentions this in passing--the absolute pitch perfect way to deliver news like this.)

Another interesting point made by Goldstein was how SCOTUSblog was originally started as a vehicle for marketing Goldstein's firm. Yet, as readership took hold, he completely abandoned any attempt to directly advance the interests of his firm through editorial content--the benefits of cultivating a perception of objectivity were very indirect but ultimately much greater. So journalistic firewalls have been erected. If his firm is handling a case before the Court, or making a filing, it not discussed on the blog by anyone from the firm. Outside commentators handle any relevant commentary. Objectivity and thoroughness are the goals.

SCOTUSblog has also gravitated away from analysis done by students at Stanford and Harvard, where Goldstein runs Supreme Court clinics, to analysis by leading subject matter experts. (In the legal academy, we are often clamoring for peer review -- well, Goldstein has acheived it.) SCOTUSblog now runs well-attended symposia.

Folks, SCOTUSblog has become a highly influential institution that is closely followed by the Supreme Court itself. And it started as a blog. In fact, it still is a blog. Based purely on reach and influence, it is more serious than any center operating out of a law school.

Perhaps it is time for us to be more openminded about what "counts" as serious. What Goldstein has created looks very serious to me. (H/T to Orin Kerr for directing me to this excellent video.)

NPR's Planet Money has a story on interplay between higher college and university tuition and changes in financial aid. As shown in the graphic below (from the College Board), the federal government is assuming a larger role in finaning higher education. Every other source of funding is shrinking its a proportionate contribution to financial aid. Despite favorable bankruptcy laws enacted in 2005, the federal takeover of higher ed financing has almost completely muscled out the private lenders.

"At this juncture . . . the impact on the broader economy and financial markets of the problems in the subprime markets seems likely to be contained" - March 28, 2007.

Two days ago, Bernanke said:

"I don’t think student loans are a financial stability issue to the same extent that, say, mortgage debt was in the last crisis because most of it is held not by financial institutions but by the federal government" - August 7, 2012

Student loans are viewed as "assets" by the federal government ... until they become uncollectable, in which case the value of the assets eventually has to be adjusted through write-downs, just like mortgages in the mortgage crisis. Extensive use of Income-Based Repayment makes it possible for a student loan to be simultaneously uncollectable but not in default.

Folks, I am an unapologetic New Deal Democrat. But the current "system" of federal higher education financing is near perfect insanity. We set tuition and, no questions asked, the federal government writes us checks in exact proportion to students' willingness to sign loan papers. For young people who have never worked, it is all like Monopoly money.

The only way the math works is if the real earnings go up en masse for virtually all college and professional school graduates. In a rapidly globalizing world in which our students are competing against Chinese and Indian professionals, the assumption of mass rising real incomes is implausible. See, e.g., views of economist Alan Blinder in this NPR article.

Right now we--higher ed and the nation as a whole--are maintaining the illusion of prosperity through debt financing heaped on naive young people. This is immoral in the extreme. Moreover, in the long run, it is economic and political ruination.

The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing. The financing has to incentivize educational productivity -- i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation. No more $100,000 checks from the federal government for sorting students by standardized test scores. Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level. How many of my fellow law professors grasp the depth of our problems? Not enough.

A recent posting by Paul McGreal at The Faculty Lounge and an article in the National Law Journal by Matt Leichter (discussed in July here on the Legal Whiteboard) raise issues about the enrollment challenges law schools began facing last year, are facing now, and likely will face next year. This post summarizes the comparative data for the 2010 and 2011 entering classes covering the 197 schools ranked by USNews.

PROFILES IN DECLINE -- Between 2010 and 2011, 111 law schools had a decline in their LSAT/GPA profile, 59 had an increase in profile, and 27 had a mixed profile. (A decline means across six possible data points, 75th, median, and 25th for LSAT and GPA, more scores went down then up; an increase means more scores went up than down; a mixed profile means the same number of scores went up as went down. For example, if a school had an LSAT/GPA profile in 2010 of 160/156/153 and 3.82/3.65/3.45 and an LSAT/GPA profile in 2011 of 160/156/152 and 3.83/3.64/3.43, this would be a decline in profile – down on three parameters and up on one parameter.) The average 75th LSAT has dropped from 160.2 to 159.9, while the average 25 LSAT has dropped from 155.2 to 154.3. The median scores for the 75 and 25 fell from 160 and 155 for LSAT to 159 and 153.

ENROLLMENT IN DECLINE – Between 2010 and 2011, 141 law schools had a decline in enrollment (of which 63 had a decline of 10% or more), 30 had an increase in enrollment (of which 6 had an increase of 10% or more), and 26 had flat enrollment (within +/- 1% of 2010 enrollment). This means over 70% of schools had a decline in enrollment and that nearly one-third had a decline in enrollment of 10% or more. The decline in enrollment totaled roughly 4000 students or roughly 8 percent.

ENROLLMENT AND PROFILES IN DECLINE – Most significantly, 75 schools (roughly 38%) saw declines in enrollment and in their LSAT/GPA profiles, of which 37 schools saw declines in enrollment of greater than 10% and saw declines in their LSAT/GPA profiles. These 37 schools are highlighted here -- (original chart has been deleted and replaced by an updated chart reflecting 39 schools as described in post on August 16). Four of the schools are ranked in the top-50, while the other 33 schools are relatively evenly divided between the second-50, the third-45 and the alphabetical schools. There is some geographic concentration, with five Ohio schools (plus Northern Kentucky), three Illinois schools and four of the six Missouri and Kansas schools on the list. Notably, 16 of the 37 are state law schools, several of which are relatively low-tuition schools that should conceivably fare better in the current climate in which prospective students are increasingly concerned about the cost of legal education.

FORECAST FOR 2012-- Given that LSAC has estimated a decline of roughly 14.4% in the number of applicants for fall 2012, from 78500 to roughly 67000, and given that the decline has been greatest among those with higher LSAT scores, one should anticipate further declines in enrollment and further erosion of entering class LSAT/GPA profiles for fall 2012. The admit rate will be the highest it has been this millennium, probably exceeding 75% and possibly exceeding 80% (after increasing from 55% to 71% between 2004 and 2011).

IMPACT FELT ACROSS THE RANKINGS CONTINUUM, BUT WORSE FOR LOWER-RANKED SCHOOLS -- While the decline in enrollment and in profiles was experienced across the board, it was more pronounced among lower ranked schools.

-Among the top 100 schools, 55 schools (over one-half) had a decline in profile, while 67 (two-thirds) had a decline in enrollment, with 27 experiencing a decline in enrollment of 10% or more. Notably, 35 schools saw a decline in enrollment and in profile (over one-third) of which 15 schools saw declines in enrollment of 10% or more and a decline in profile. Overall enrollment was down roughly 6%.

-Across the bottom 97 schools then, 56 saw a decline in profile while 74 (more than three-quarters) saw a decline in enrollment, of which 36 (nearly 40%) saw a decline in enrollment of 10% or more. Notably 40 schools saw a decline in enrollment and a decline in profile, of which 22 saw a decline in enrollment of 10% or more and a decline in profile. Overall, enrollment was down nearly 10%.

The Legal Whiteboard is believed to announce the addition to two new bloggers, Michele DeStephano of the University of Miami and Jerry Organ of the University of St. Thomas.

Michele is scholar of the legal profession and one of the founders of Law Without Walls (LWOW), an innovative teaching format that levels the barriers between students, professors, practicing lawyers and clients. I have been fortunate to have been involved with the LWOW during its first two years of operation. It has opened my eyes to the benefits of experimentation, how students learn, and the indispensible role to be played by practicing lawyers. The students need the mentorship and the lawyers benefit enormously from the opportunity to reflect--far more than they ever realized. Michele and her co-founder Michael Bossone (yes, the guy with the really cool ignite video) are working diligently to scale the LWOW insights into something large and enduring. You will no doubt read about it here!

Jerry Organ is scholar of property and environmental law who left his professorship at University of Missouri to be part of the founding faculty of the University of St. Thomas School of Law, a very innovative school in Minneapolis, Minnesota that is unapologetically mission driven. I have visited St. Thomas for faculty and students talks and have been inspired and humbled by the wonderful spirit that pervades the institution. Jerry, who embodies the St. Thomas ethos, is deeply interested in the professional formation of lawyers and the types of teaching methods needed to effect the transformation from student to professional. He is also a hardworking reformer. Jerry recently served on the ABA Questionaire Committee. From my perspective, the work product of that committee has, for all practical purposes, ended the law school transparency crisis.

I am confident that both of these colleagues will add something new and fresh to the Legal Whiteboard.

Over a 3 Geeks, Toby Brown asks, "Is the legal market flat?" Toby's analysis is especially interesting because of his day job -- he is a strategy professional at an AmLaw 50 firm who focuses on pricing and market analytics. In that capacity, he has access to the various proprietary databases that track legal spending. Toby writes, "Although there have been minor ups and downs on this stat (most recently a slight up-tick), the overall demand has been and continues to be predicted as … flat."

But then Toby wonders if the stats are potentially misleading because the databases define the market as BigLaw. If work is leaking out of this market and going to new entrants, flat revenues may mask a reconfiguration of the legal marketplace--one where BigLaw is less dominant.

As evidence for this possible trend, Toby links to an article on Pangea3, which is a legal process outsourcing (LPO) owned by Thomson-Reuters (a publicly traded company). Since its inception in 2003, Pangea3 has grown at "40% to 60%" per year and is "growing even faster" in 2012. Pangea3 now employs 850 lawyers, mostly in India.

Now think about that: 850 lawyers growing at 50% per year for five years is 6,455 lawyers--by 2017. And that is just one LPO.

Huron Consulting Group (NASDAQ: HURN) recently issued a press release announcing a new document review and data operations facility in Gurgeon, India (functionally a booming suburb of India--I've been there). The press release reads, "The Company offers around-the-clock global discovery support with 1,500 seats at nine locations across the U.S., U.K., and India to address clients’ complex business needs." As I noted in an earlier post, Mindcrest, with HQ offices in Chicago but facilities in India, is also growing at a breakneck pace.

In my estimation, very few lawyers or law professors grasp what is taking place here. We look at flat revenues in BigLaw and draw the inference that we are in a prolonged recession. Meanwhile, the legal business is absolutely booming in India, thanks in substantial measure to its integration into the U.S. and U.K. legal supply chain. Play these trends forward for five more years, and the prolonged recession storyline will no longer be credible.

And remarkably, the drivers of this change are publicly traded companies or companies funded by venture capital and private equity.

Beyond Toby's observations, I would add the following to the big picture. The ABA Commission on Ethics 20/20 was recently pressured to drop its recommendation for even a very most modest change to the Rule 5.4 prohibition on fee splitting with nonlawyers. (see here.) This effort was lead by the Illinois State Bar Association, which wanted to shut down debate on this topic during the August ABA Annual Meeting in Chicago.

I fear that the U.S. legal profession is looking through the wrong end of the telescope. In a practical sense, fee spliting only applies to counseling and advocacy. But the full legal supply chain includes a host of legal products and inputs that Wall Street and Sand Hill Road capitalists are anxious to supply. This supply chain analysis is especially true when the client is a Fortune 500 corporation. The policy that drives fee-splitting is consumer protection and a belief that the nonlawyer profit motive will compromise lawyer independence and injure the client. Yet, organizational clients want innovation and more for less. And they are finding non-law firm vendors who are filling that need. The organized bar is powerless to stop these changes.